Copyrights: How Different is Different Enough?

Joshua Kaufman © 2002

The most common area of legal dispute between artists, galleries, publishers, licensing agents, is copyright infringement. Copyright ownership is at the heart of all financial transactions in the arts, yet it is surprising how many myths circulate and how little accurate knowledge there is of copyright law by those in the art field whose very existence depends on it. This article will be the first of several primers going into some detail on copyright law as it applies to the art world.

The first critical concept is that copyright law protects the expression of an idea, not the underlying idea. As such, one can look at someone else’s artwork, understand the concepts, ideas in it, be inspired, and create their own work, without infringing on the other party’s copyright. This type of appropriation can be found to be very frustrating for those who are innovators and wish to protect their breakthroughs from imitators who take their creativity and usurp it in the marketplace. Unfortunate for the creative innovator, American jurisprudence believes in the dissemination and widespread use of ideas, and their free flow through society. As such, it does not provide protection for ideas. There are areas, under patent and unfair trade competition law or by contract, where ideas, are provided with limited protection; however, they usually do not apply to the visual arts field.

Even though an idea can be appropriated and reused, the expression of the idea by the originator creator is protected. The area of controversy between similar works therefore becomes, whether the second work appropriated the expression, which is not permissible, or the unprotected idea. There is no simple firm guideline as to how much has to be changed from one work to another to avoid infringement. There are many old wives’ tales out there that have no basis in the law. I have heard people say, "all you have to do is change a little bit", "a few lines here and there", "five percent", "ten percent", "twenty percent", "eight measures of music", "250 words in a literary work", all of these supposed guidelines are without support in the law. Ignore them, forget you ever heard them. The test for copyright infringement is whether or not the two works are substantially similar.

Substantially similar is a term which by its very nature is ambiguous and lends itself to interpretation on a case-by-case basis. Therefore, before anyone can tell you if there’s an infringement, they most look at both the allegedly infringing work and the original underlying work to see if they are "substantially similar." There are not that many "art law" Appelate Decisions so often look to cases in other similar areas for answers to our questions. Cases have generally held that there must be a substantial material taking in order for there to be infringement, i.e., substantial. Substantial can be looked at both quantitatively and qualitatively. Not only do we look at the amount of material copied, but we also consider the importance of the portions copied. The more important the copied elements are to the underlying work, the less the court will look to in terms of amount. This is illustrated very well in a case in which the Supreme Court found that copying 300 words out of an 80,000-word book (and adding to that, the 300 words were very newsworthy) was an infringement. Courts have, in literary matters, have gone and held that as little as two words can be protected, when they are key elements.

You can be held liable for verbatim copying, where you duplicate the whole work of parts of the work exactly, or at times for copying the overall pattern and arrangement of the work, the "look and feel" of the work. There are a number of "look and feel" cases in the copyright area most in the computer area. The issue has been raised in art/copyright case, but no Appellate reported decisions have come down. However, that does not mean that with the appropriate fact pattern new law could not be created protecting a "look and feel" under copyright. In the related area of trademark law, "look and feel" would be considered "trade dress", and there are a few cases which do protect an artist’s rights under "trade dress". In the literary field, paraphrasing has been held to be infringing. How would paraphrasing be interpreted in artwork is also an area that could be investigated, but there are no cases to date on it. Changing medium does not insulate the copyist at all. Moving something from one medium to another, if the works still are visually substantially similar, will be an infringement. For example making a sculpture out of painting will be an infringement.

In whose eyes must the works be substantially similar? The art-buying consumer, or the sophisticated expert? In fine art cases, the courts usually adopt what is known as the "ordinary observer or audience test." Under this test a judge or jury would ask the question whether the copyist took from the original artist which would be identified as similar by the audience for whom the work was created, art buying public, not the experts. Under this test, one does not present expert witnesses and testimony providing detailed analysis, nor dissection of the artwork to determine whether a work is substantially similar. Instead, what is used is an immediate visceral reaction to the two works, when looking at them overall. The reaction of the public in these matters is their spontaneous and immediate reaction. This test is not universally followed by courts, and has not been without its critics. A number of people point out that the lay observer may miss similarities when the underlying works are portrayed in different medium, that areas which are not protected in the works, such as the aspects taken from the public domain, which are the only parts that overlap in the two works, can give the untrained eye the impression that the works overall are substantially similar, when in fact the only similarities are not in the protected, but in the unprotected areas. It is also more difficult perhaps for an ordinary observer to distinguish the nuances and subtleties of the idea/expression dichotomy explained above. Certain courts therefore have determined that the ordinary observer, the audience test, should be made up of more sophisticated individuals. In the art world, it might be deemed art gallery owners, publishers, or artists rather than the consuming public.

Speaking of the public domain, there are works that anyone can use. Many, many artworks have fallen into the public domain, works published in the United States before 1922, those published without copyright notices before March 1, 1989, and other works which have not complied with various formalities in the United States are in the public domain. NOTE: Foreign artists, when we joined the Baron Convention in 1989, had their rights restored for works that were lost due to not complying with American formalities, extra care must be taken in reproducing their works. When a work is in the public domain, it and its elements can be reproduced in new artworks without the risk of infringing. Ascertaining whether or not a work is in the public domain takes some detective work, and easy assumptions should be avoided.

Taking fragments of a work and incorporating them in a new work can also be deemed an infringement it is known as "fragmented literary similarity". You see a work and start to notice, even though the overall work is different, that someone has copied parts of your work, i.e. your sun, clouds, a couple of buildings, etc. That may also be an infringement.

We often hear from those who have copied someone else’s work that, "all art is derivative, that throughout the course of history students have copied the work of the masters, artists have been inspired and copied the works of other artists, and that is how the world of art has progressed throughout history". While that all may be true, American copyright law holds that, there are limits, that yes, you can be inspired by other people work, but you have to add your own creative spark to the work, and not rely on taking too much, "a substantial amount", from the underlying work.

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Joshua Kaufman is one of the country's leading art and licensing lawyers. Based in Washington DC he has a national practice. Many of his published arts on art law, copyright, licensing and e-commerce can be found on his web site at, www.jjkaufman.com